Apple's lead barrister Stephen Burley came to the Federal Court today intending to enforce five patents.

Two of those five were excluded today:

one, which covered the use of a slider icon to unlock the tablet's touch screen (patent number 2008100011), was removed from the case at the beginning of the hearing.

A second patent (2009208103), covering the use of a bouncing animation upon zooming on an icon or document, was temporarily excluded from today's hearing after Samsung proposed to remove the feature from the Australian version of the tablet.

That left three patents on the table for argument today. They covered the manufacture of a capacitive touch screen used in the iPad 2 and Galaxy Tab 10.1 (2005246219), selective rejection of inadvertent finger movements on a touch screen (2008258177) and a heuristics patent used to correct a user's finger movements when scrolling vertically on a screen (2007286532).

An additional patent was expected to be cited by Apple at hearings later this week, making up the four it would now pursue against Samsung in Australia.

Apple's legal counsel continued to seek further delays to the launch of the Galaxy Tab 10.1 in Australia, which has already been delayed twice and was due for a final release at the end of this week.

Samsung's changes

During the course of the proceedings, Burley detailed the changes made by Samsung between the US and Australian versions of the Galaxy Tab 10.1 in repeated attempts to make the Galaxy tablet suitable for a local launch.

According to a letter sent by Samsung's legal counsel to Apple, and tendered to the court, the South Korean manufacturer had made a total ten changes, including adding its branding to the front of the Australian version of the tablet.

It had removed seven interface features in the tablet that, according to Burley, represented a "stripping down of functionality" in the local prototype.

Two other changes made, left without detail by Burley, covered hardware and software changes made by Samsung. Apple claimed these latter changes remained in violation of the four patents it would assert in the case.

"One sees a product that again is not markedly different in form factor and shape from the iPad 2, which is the established market leader," Burley argued.

"Apple's position is that of course it welcomes competition in the market but it is jealous to protect its intellectual property."

Apple's counsel served video demonstrations, along with affidavits from Rob Small, Apple Australia marketing director, and Professor Andy Cockburn of the University of Canterbury in New Zealand as evidence of the ways in which Samsung had particularly violated Apple's patents on selective rejection of finger gestures and heuristics.

"Eyes wide open" attack

Burley alleged that Samsung had purposefully manufactured the Galaxy Tab 10.1 while aware of Apple's patents potentially posing a risk to the device's launch in Australia.

Apple's significant investment in making its iPad, iPhone and iPod touch devices unique - including a research and development spend in excess of $3 billion over three years in the lead-up to the iPhone's launch - had been threatend by the South Korean manufacturer's action.

"It must have been plain as the Opera House to Samsung that Apple's patents were right in front of its eyes and that they were wide open," he argued, pointing to Samsung's proposition to remove the zoom bounce feature as an example of its "alertness" to the issue.

"If they intend to launch a product that infringes a patent, they ought to clear the way in advance, not to crash through."

However, Samsung legal counsel David Catterns QC fought back with claims Apple's "eyes wide open" argument was not valid in this case as it dealt with individual patents relevant to specific aspects of the tablet devices, rather than the tablet devices as a whole.

The "eyes wide open" argument had traditionally been used in Federal Court cases concerning pharmaceutical patents.

The argument had been made successfully by applicants in cases in 2006 and 2009 against generic drug makers.

However, Catterns argued the fact that Apple had not sought to sue Samsung for previous iterations of the Galaxy tablet and smartphone lines sold in Australia - including the Galaxy Tab 10.1v still available locally - showed Apple itself had prior knowledge of Samsung's tablets in Australia.

He claimed Apple had sought an injunction from the Federal Court for the newer version of the Galaxy Tab 10.1 as it was an arguably more "attractive" and "formidable" opponent than previous Samsung tablets.

"The inconvenience our learned friends would suffer from the presence of the touch rejection feature in a Samsung Galaxy 10.1 tablet is negligible," he said.

"The relative inconvenience in this case is not the presence on the market of an attractive product from a formidable competitor but whether or not three patents are infringed. That's what I respectfully submit we need to focus on."

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